Rounsaville v. State

Court of Appeals of Georgia, Third Division

May 24, 2018

ROUNSAVILLEv.STATE OF GEORGIA.

ELLINGTON, P. J., BETHEL, J., and SENIOR APPELLATE JUDGE
PHIPPS.

Ellington, Presiding Judge.

Pursuant
to a granted application for an interlocutory appeal, Randall
Scott Rounsaville contends that the Superior Court of Catoosa
County erred in denying his motion to dismiss the State's
complaint for forfeiture and in granting the State's
motion for a continuance because the State failed to satisfy
the statutory mandates for scheduling forfeiture trials. For
the following reasons, we agree and reverse the superior
court's order.

Because
this appeal presents a question of law based on undisputed
facts, our review is de novo.[1] The record shows that, on March
2, 2017, the State brought an in personam criminal forfeiture
action in Catoosa County Superior Court against Rounsaville
and a co-defendant, seeking to forfeit approximately $100,
000 in cash, six firearms, and other personalty that were
seized during a search of Rounsaville's
residence.[2] The State alleges that the authorities
also found nine pounds of suspected methamphetamine at the
residence and that the property sought to be forfeited was
located near, and was used to facilitate the distribution of,
the methamphetamine. Rounsaville and his co-defendant were
arrested and charged with trafficking in methamphetamine.

OCGA
§ 9-16-13 sets forth the procedure for in personam
criminal forfeitures in Georgia. Among other things, the
statute provides that, if the defendant files an answer
within 30 days after being served with the complaint, then
"a bench trial shall be held within 60 days after the
last claimant was served with the complaint; provided,
however, that such trial may be continued by the court for
good cause shown." OCGA § 9-16-13 (f). Rounsaville
contends, inter alia, that the State failed to meet the
statutory 60-day deadline for conducting a bench trial and
that the court, therefore, erred in denying his motion to
dismiss.

Before
turning to the chronology of events, we note two factors
relevant to this case. First, the superior court is located
in the Lookout Mountain Judicial Circuit, in which four
judges cover four counties, including Catoosa. Second, due to
conflicts of interest with defense counsel's law firm,
only one of those judges - Judge Dan Thompson - could hear
cases in which Rounsaville's lawyer appeared as counsel.
Judge Thompson spends only a few days each month in Catoosa
County on bench trial calendars, as is evidenced by email
correspondence between his office and counsel.

Against
this background, the following occurred. Because the State
filed its petition on March 9, 2017, the 60-day period during
which a bench trial on the petition could be heard would
expire on May 9. On March 30, defense counsel emailed the
prosecutor asking that the trial date not be scheduled for
April 24 (one of Judge Thompson's few bench calendar
days), as counsel had planned to be out of town. The
prosecutor noticed the trial for April 24, given that he had
his own obligations, but agreed to speak to the judge about a
continuance. On April 20, the trial judge held a conference
call with defense counsel and the prosecutor. The judge
orally agreed to continue the April 24 trial in light of
defense counsel's conflict and asked defense counsel to
prepare an order to that effect; however, the parties reached
no agreement concerning an alternate trial date and the court
scheduled none.

On
April 23, defense counsel emailed a proposed continuance
order to the prosecutor with the understanding that the
prosecutor would present it to the judge in court the
following day. The order contained a blank space for the date
of the rescheduled forfeiture trial. The prosecutor, however,
did not present the order to the judge on April 24. Rather,
the prosecutor emailed the proposed continuance order to the
judge .

On June
1, the prosecutor contacted the judge's assistant, asking
when the judge would next be in Catoosa County for bench
trial days. The assistant responded that the judge would be
available on June 21 and July 5. Thereafter, the prosecutor
emailed defense counsel asking if he would be available on
July 5. Defense counsel replied in the affirmative, but the
prosecutor did not schedule the trial for that day. Instead,
on June 5, the judge signed defense counsel's proposed
continuance order. In the blank space counsel left open for
the trial date, either the judge or the prosecutor wrote
"10/11/17." After the written continuance order was
finally entered on July 17, the prosecutor emailed defense
counsel and told him that the October 11 date was the next
time Judge Thompson would be in Catoosa County for a non-jury
day.

On July
25, defense counsel emailed the prosecutor, objecting to the
manner in which the order was entered, since it did not
reflect their agreement. Defense counsel moved to vacate the
continuance order, presenting email evidence demonstrating
that he had not agreed to an October trial date. On July 21,
the judge orally vacated the continuance order; however, he
did not enter the written order until August 1. On July 31,
the court entered a revised order granting Rounsaville's
previous request for a continuance due to defense
counsel's scheduling conflicts, nunc pro tunc to April
24, but the order did not set a trial date.

On July
28, the State moved for a continuance for good cause,
arguing, among other things, that it had not received the
results of drug testing on the suspected methamphetamine
seized from Rounsaville's residence. On August 1,
Rounsaville moved to dismiss the forfeiture complaint for,
among other things, the State's failure to meet the
statutory 60-day deadline for conducting a bench trial. After
an August 2 hearing on these motions, the court entered an
order denying Rounsaville's motion to dismiss and
granting the State's motion for a continuance. The judge
found that counsel for both parties had been "active in
rescheduling" the trial and "engaged in trying to
find a mutual time to reschedule the case, " but that
busy schedules had precluded a consensus. The judge further
found that there was good cause to continue the trial from
the original April 24 date due to defense counsel's
scheduling conflict, and "[g]ood cause continues to
exist due to this Court's busy docket and the fact that
the alleged controlled substances in question have not been
tested by a Federal crime lab." Finally, the judge found
that Rounsaville had "waived the [statutory] timelines
in question or acquiesced to waiving the timelines."

As
noted above, OCGA § 9-16-13 (f) requires that a
forfeiture trial "shall" be held within 60 days of
the date the defendant is served with the complaint, which,
in this case, was May 9, 2017. This 60-day requirement is
mandatory, not permissive, because the purpose of the statute
is to "ensure a speedy resolution of contested
forfeiture cases in the courts, as well as a speedy
resolution of property rights." State v.
Henderson, 263 Ga. 508, 511 (436 S.E.2d 209) (1993)
(decided under former OCGA § 16-13-49). The trial court
may grant a continuance for good cause, but "even if a
continuance is granted for good cause thereby causing the
State to miss the original 60-day deadline, the outermost
limits of a continuance would be another 60-day period before
either the matter is heard or another continuance is
granted." (Punctuation omitted) McDowell v.
State, 290 Ga.App. 538, 539 (2) (660 S.E.2d 24) (2008)
(decided under former OCGA § 16-13-49 (o)
(5)[3]); see also Williams v. State, 302
Ga.App. 617, 618 (691 S.E.2d 385) (2010) (accord). Thus, in
this case, the prosecutor was required to reset the trial
date or to move for a continuance before the second 60-day
period expired on June 23. "The result of a failure to
conduct a hearing within 60 days, or to obtain a good-cause
continuance, is a dismissal of the State's
complaint." Goodwin v. State, 321 Ga.App. 548,
549 (1) (739 S.E.2d 814) (2013) (decided under former OCGA
§ 16-13-49).

The
State argues that Rounsaville waived his right to insist upon
the statutory 60-day requirements because he initially
requested a continuance. The State knew, however, before it
scheduled the trial for April 24, that defense counsel was
not available then and had specifically asked that the trial
not be scheduled that day. Nevertheless, the State
noticed the trial for April 24, which prompted
Rounsaville's request for a continuance to the next
available trial date. Pretermitting whether Rounsaville's
request for a continuance acted to waive a trial within the
first 60-day period, the evidence does not show that
he waived a timely trial within the second 60-day
period because that had yet to begin. See McDowell v.
State, 290 Ga.App. at 539-540 (2) ("notice of a
court scheduling conflict is required by court rules and does
not, standing alone, amount to a waiver of time
requirements").

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
State also argued - and the trial judge found - that
Rounsaville waived his right to insist upon the statutory
scheduling requirements by participating in fruitless
discussions to reschedule the trial.[4] The record does not support
this finding. Rather, the record shows that the superior
court orally granted a continuance on April 21, after which
nothing happened for more than a month. In early June, the
State asked the judge's assistant for upcoming Catoosa
County bench trial dates. The record shows that Judge
Thompson was available on May 31, June 7, June 19, and June
21 - all of which would have been within 60 days of the
orally-granted continuance. Yet the only date the prosecutor
suggested to defense counsel was July 5. Defense counsel
confirmed his availability on that day, but the State failed
to schedule a trial. Instead, six more weeks passed until the
judge finally entered an order setting the trial for October
11 - well ...

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